With FIFA hopping from one scandal to the next, one
tends to disregard the fact that it has been attempting (or rather pretending) to
improve the governance of the organisation for some years now. In previous
blogs (here and here), we
discussed the so-called ‘FIFA Governance Reform Project’, a project carried out
by the Independent Governance Committee (IGC) under the leadership of Prof. Dr.
Mark Pieth of the Basel Institute on Governance. Their third and final report, published
on 22 April 2014, listed a set of achievements made by FIFA in the area of good
governance since 2011, such as establishing an Audit and Compliance Committee (A&C).
However, the report also indicated the reform proposals that FIFA had not met.
These proposals included the introduction of term limits for specific FIFA
officials (e.g. the President) as well as introducing an integrity review
procedure for all the members of the Executive Committee (ExCo) and the
Standing Committees.

“In the interest of, and commitment
to, transparency”, FIFA made publicly available on 10 September 2015 an
8-point reform plan issued by
the Chairman of the Audit and Compliance Committee, Domenico Scala. The report
maps the current governance problems FIFA is facing and outlines a list of
reform proposals the A&C wants FIFA to implement. More concretely, the
A&C believes that the ExCo is FIFA’s main problem, and urges the ExCo to
reform itself.

This blog post aims to analyse the proposals submitted
by the A&C. It will do so by firstly explaining what the FIFA Executive
Committee is, what its powers are and how its members get elected. This allows
us to understand the criticism this institution has received in the past by, e.g.
the Independent Governance Committee, and by the A&C today. In
continuation, a comparison will be made between this latest report on FIFA
governance and the 2014 report issued by the IGC. The comparison will help us
answer the question to what extent FIFA is seriously trying to undergo the
necessary reforms. Lastly, the blog post will determine whether the proposals
made by Scala and the A&C can be realistically implemented by FIFA and,
where necessary, its Members and the Confederations.

The FIFA Executive Committee: How it works and why it is criticised

The ExCo is the executive body of FIFA and consists of
25 members: The FIFA President, eight Vice-Presidents and 16 members, including
one female member. The FIFA President and the female Member of the ExCo are
elected by the FIFA Congress (the legislative body of FIFA, of which all the
National Associations are a Member and have one vote each)[1],
whereas the Vice-Presidents and the other members are appointed by the Confederations
(i.e. UEFA, CONMEBOL, AFC, CAF, CONCACAF and OFC)[2].
It should be noted that the Confederations themselves are not members of FIFA. All
members of the ExCo are elected for four years and may be re-elected
indefinitely.[3] The
tasks of the ExCo include determining the dates, locations and format of the
FIFA tournaments and electing the General Secretary on the proposal of the FIFA
President.[4]
Moreover, the ExCo designates the members of each standing committee.[5]
An example of such a standing committee is the Finance Committee, whose task is
to monitor the financial management and advise the ExCo on financial matters
and asset management.[6]

In a concept paper from
September 2011, the IGC described the ExCo as an “assembly of member delegates”
rather than executive body. “The nature of the Executive Committee as an
assembly of delegates is further supported by its large size (24 members in
2011) and few meetings (two meetings per year)”.[7]

The often-mentioned governance problem of the ExCo involves
the ‘double’ or even ‘triple heads’ of some of its members. For example, the
man who is president of the Spanish football association (RFEF) since 1988, Ángel
María Villar, is also vice-president of UEFA since 1992 and FIFA Executive
Committee member since 1998. Having important functions in three related,
though different, organisations could trigger severe independency and conflict
of interest issues. Furthermore, as the A&C pointed out in his 8-point
reform plan, “the misconduct of some, even if it happens ‘only’ at the Confederation
/ national association level, has a tremendous impact in FIFA itself”.[8]
One only needs to remember the example of former ExCo Members, Jack Warner and
Chuck Blazer, who in their other function as president and vice president of
the CONCACAF laundered millions of dollars and were charged with corruption.[9]

In its concept paper, the IGC already underlined the
lack of independent supervision within the ExCo and suggested introducing a number
of independent ExCo Members.[10]
Further recommendations were substantiated in the IGC’s final report, which
included implementing integrity review procedures for all members of the ExCo
and the Standing Committees performed by FIFA centrally, and having the FIFA
Congress confirm each ExCo member appointment or re-appointment by the
Confederations.[11] Nonetheless,
more than four years after the publication of the first IGC report and even after
the 2015 FIFA corruption scandal, which led
to the arrests of ExCo Members Jeffrey Webb and Eugenio Figueredo, the way ExCo
Members get elected has not changed. For example, so far a requirement for
integrity checks of new Members has not been introduced.

Comparing the Final Report by the Independent Governance Committee and
the Scala reform plan

The Final Report by the IGC contained a list of
achievements including:

• Dividing the Ethics Committee into an investigatory
and an adjudicatory chamber;

• Revising the Code of Ethics, through which the rules
of conduct and expected behaviour (e.g. new standards regarding conflicts of
interest, gifts and other benefits, bribery and corruption) are more clearly described;

• Establishing an Audit & Compliance Committee
with the typical supervisory role of an Audit Committee and the additional
responsibilities for a Compliance Program as well as for Compensation &
Benefits;

• Establishing that the Chairman and Vice-Chairman of
the Audit & Compliance Committee are independent and meet the necessary
professional requirements.[12]

In addition to the list of achievements, the report
listed a set of recommendations that were not implemented. The main
recommendations are listed in the table below, together with the list of reform
proposals found in the 8-point reform plan.

Report by
the Independent Governance Committee

Scala reform
plan

Term
Limits

The
introduction of term limits for all ExCo members, not only the President.

Introduction of Term limits
for the President, the (other) ExCo
members, the Secretary General and members
of independent committees to three terms of office
(each of four years).

Age
Limits

Introducing
age limits is less important in case terms of office will be implemented.

The introduction of age limits appears to be less effective.

Election
of the ExCo Members

The ExCo Members should each be individually confirmed by Congress decision
upon their appointment or re-appointment by the Confederations.

Direct election of FIFA Executive Committee
members by the Congress.
Confederations will retain a right to propose candidates.

Integrity
Check of ExCo Members

Integrity
review procedure for ExCo and Standing Committee members performed by FIFA
centrally.

Enhanced
and centralized integrity checks performed by the Investigatory Chamber of
the FIFA Ethics Committee.

Further
recommendations with the aim of improving the functioning of the ExCo

At least two
independent Members to be added to the Executive Committee.

Division
of the present ExCo into two separate bodies: a Governing Body (strategic
matters, supervision) and a Management Board (executive functions).

Disclosure
of individual compensations

A
publication of information in the area of compensation and benefits on a
best-practice level inspired from multinational corporations or international
organization.

Individual
and detailed disclosure of the remunerations of the President, the other ExCo
members, the Secretary General and (at least) of the Chairmen of the
independent committees.

FIFA’s Member
Associations and the Confederations

An
overall greater focus should be on the Confederations and their leadership.

The Member
Associations, through their votes at a Confederation level and at the FIFA
Congress, should take over a more active and independent role in choosing the
future FIFA leadership.

Introduction
of higher standards of governance at Confederation and member association
levels.

Introduction
of equal integrity checks at Confederation and National Association level.

Introduction
of equal term limits at Confederation and National Association level.

Other
recommendations

The
Chairman of the Audit & Compliance Committee should have access to and
can participate as an observer in all Committee meetings within FIFA,
including the ExCo.

Significant
reduction of the number and size of the standing committees.

Committees
that bear a high risk of conflicts of interests occurring must have
independent chairmen.

Analysing the two governance reports

As a preliminary note, it is worth mentioning that the
establishment of the FIFA Audit and Compliance Committee came about after the
IGC suggested doing so in their report, published
on 20 March 2012.[13]

A quick look at the above table shows that the
recommendations by the IGC and those listed in the 8-point reform plan are very
similar. First of all, the introduction of term limits for the FIFA President
and ExCo Members is encouraged in both reports, whereas introducing age limits
is discouraged. Secondly, both reports agree that there should be an integrity
check for at least the President and the ExCo Members performed by FIFA itself.
What these integrity checks would entail still needs to be clarified. Thirdly,
it is clear that individual compensations of the President and the ExCo Members
need to be disclosed to the public. Both reports contend this is essential to
improve the governance and transparency of FIFA. Lastly and, in our opinion,
most importantly, both reports agree that the Confederations and Member
Associations play a most essential role when attempting to effectively improve
the governance of FIFA. Where the two reports slightly differentiate from one
another is on what the exact position of the Confederations and Member
Associations should be, how they are involved in the electoral process of the
FIFA President and ExCo members, and how they should be reformed themselves.

In its report, the IGC highlights the importance of
the Confederations and national associations, but it does not suggest any substantial
reform in this regard. In fact, the second recommendation of the report
stipulates that “the members of the Executive Committee should each be individually confirmed by Congress decision upon their appointment or re-appointment by the Confederations”.[14]
The IGC’s suggestion of a limitation of the Confederation’s role in the
election process of the ExCo members was heavily criticised by, most notably,
UEFA. All the UEFA members voted unanimously against the
introduction of term limits for ExCo members during the FIFA Congress of January
2013. UEFA also held the view that the Congress should not have the right to
confirm Confederation candidates delegated to the ExCo and that integrity
checks on candidates should not be performed by FIFA but by the Confederations.[15]

The Scala proposal has a slightly different take on the
role of the Member Associations and the Confederations, especially with regard
to the election to the ExCo: “all members of the FIFA Executive Committee (are)
to be directly elected by the FIFA Congress. The Confederations will retain a
right to propose candidates.”[16]
Furthermore, “Confederations and FIFA Member Associations have to issue
adequate ethics and disciplinary regulations and set up the bodies required to
implement them. All persons assigned to FIFA bodies have to pass strict
integrity checks in their respective Confederations and national associations.”[17]
Lastly, there has to be an obligation for Confederations and Member
Associations “to establish integrity checks with regard to positions in their
top governing bodies as a precondition for eligibility”.[18]

A conclusion that can be drawn from the Scala reform
plan is that it assumes the same governance problems highlighted in the IGC
reports, especially as regards the ExCo, but suggest more far-reaching
proposals. Improving the governance of the ExCo cannot simply be achieved by
introducing term limits and integrity checks at FIFA level, rather similar
reforms must be introduced in the Confederations and in the National
Associations. This would require that the Confederations and National
Associations put in place credible integrity self-checks. Yet, it is clear from
the recent past that the Confederations are not willing to implement this type
of accountability mechanisms, nor are they really committed to giving them the
necessary teeth.

Conclusion: Can the Scala reform plan be implemented?

The Scala report offers a newish take on old recipes
to solve FIFA’s bad governance syndrome. Nearly all of the reforms proposed
require amending the FIFA Statutes. For example, “the passing of the integrity
check and the introduction of equivalent integrity checks by Confederations and
Member Associations to qualify for elections to FIFA governing bodies need to
be included in the FIFA Statutes and therefore need to be adopted by the
Congress”.[19]
Similarly, “direct elections of members of the FIFA Executive Committee
mandatorily needs to be provided for in the FIFA Statutes; corresponding
revisions would therefore have to be approved by the FIFA Congress”.[20]
In accordance with Article 26(6) of the FIFA Statutes, for a proposal to adopt
or amend the Statutes, a simple majority (more than 50%) of the valid votes
cast is required. Procedurally, implementing the reforms proposed by Scala is
straightforward: a simple majority of the votes at a FIFA Congress (the next
one being on 26 February 2016) is needed.

However, achieving a simple majority might not be as simple
as that. Introducing term limits, for example, would mean that many of the
Members voting for this measure would create an “expiration date” for a job
they have held for years (decades even in many cases) and do not want to lose.
One only needs to remember the fact that during the FIFA Congress of January
2013, the Members of UEFA voted unanimously against the
introduction of term limits for ExCo members.

Introducing integrity checks at FIFA level is one
thing, but having similar checks at the Confederation and/or National level
would imply that the people voting at the FIFA Congress would introduce integrity
checks against themselves. In any normal global organisation this should not be
a problem. However, as regards the governance of football, in light of the
never-ending list of scandals, one can easily understand why many members would
prefer not to see such integrity checks taking place in their backyard.

Scala attacks the ‘old boys’ networks’ within the
ExCo, the Confederations and the Member Associations.[21]
Similarly, the IGC held that “the ultimate success of the reform depends on a
change in culture on all levels of the organization, especially with the key
opinion leaders who need to lead by example and act in the interest of FIFA and
football overall”.[22]
Changing FIFA is not only about pushing a reform measure through the FIFA
Congress, already an extremely difficult endeavour, it is also about changing a
culture of omerta and corruption that has been around since the organisation’s
earliest days, and to which the key players want to cling on as long as
possible. Whether this can be done from inside the organization is doubtful.
Instead, only the pressure of the public and the external legal control
exercised by national (and European) authorities will force the great leaders
of the beautiful game to bend and finally put in place mechanisms securing
their accountability.

[8] “Substantiation of the Reform
Proposals Presented at the FIFA Executive Committee Meeting of 20 July 2015”,
Reports submitted to the FIFA Executive Committee by the independent Chairman
of the FIFA Audit and Compliance Committee, page 4.

Upcoming Events

The ASSER International Sports Law Blog

This blog is a knowledge hub for all things related with International Sports Law. On this page, you will find the recent developments in the field: publications, events and cases. Moreover, we will provide outstanding (short) academic commentaries on the most pressing questions in International Sports Law.